March 4, 2022 | Legislative Reporter

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March 4, 2022 | Legislative Reporter We are entering the last week of the 2022 legislative session. The number of bills available for lawmakers to consider will lessen. House Rule 10.18 says that after the 55th day (March 6), the House can no longer take up bills on second reading, meaning any House bill that is going to get a vote must already have been rolled over to third reading. Much of the final week of session will be taken up with bills that have already passed one chamber or the other and are in messages, or are bouncing back and forth between the chambers as they pass amendments. Any amendments made must be signed off on by the other chamber.

The legislature will have to take up a finalized budget this week. The state constitution requires a 72-hour public review or “cooling off” period, before a final vote once the conference committees have agreed upon a budget. That means that the finalized budget would have to be done by March 8 to meet the scheduled end of session on March 11.

Gov. DeSantis has begun to receive bills that have passed both chambers. To follow the action he takes on these, go to flgov.com and click on the box on the right side of the page titled “2022 Bill Actions”.

To see the status of the bills being tracked by APA Florida, click here. You can also view APA Florida’s legislative priorities here. On March 2, APA Florida issued a statement opposing legislation that hinders the ability to recognize and remedy institutional bias, exclusion and inequity.

The following bills of interest have had action over the past week. Note: These summaries are based on a review of the bill language and legislative staff analysis. You are encouraged to read the actual bill language of bills that interest you.

Growth Management

Local Ordinances: CS/HB 403 (Rep. Giallombardo) was reported favorably by the House State Affairs Committee on Feb. 28 and placed on the House Calendar on Second Reading. An identical bill, CS/CS/SB 280 E1 (Sen. Hutson) was passed by the Senate on Jan. 27 and is in the House in Messages.

The bills revise s.125.66 F.S. and s.166.041 F.S. to require cities and counties to prepare or cause to be prepared a business impact statement before adopting an ordinance, with exceptions. The proposed effective date of the bills is March 4, 2022 | Legislative Reporter

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Oct. 1, 2022. The business impact statement must be posted on the jurisdiction’s website no later than the date the notice of proposed enactment is published. The business impact statement must include all of the following: 1. a summary of the proposed ordinance, including a statement of the public purpose served by the proposed ordinance, such as serving the public health, safety, morals, and welfare of the jurisdiction; 2. an estimate of the direct economic impact of the proposed ordinance on private for-profit businesses in the jurisdiction including the following, if any: • an estimate of direct compliance costs businesses may reasonably incur if the ordinance is enacted; • identification of any new charge or fee on businesses subject to the proposed ordinance or for which businesses will be financially responsible; or • an estimate of the jurisdiction’s regulatory costs, including an estimate of revenues from any new charges for fees that will be imposed on businesses to cover such costs; 3. A good faith estimate of the number of businesses likely to be impacted by the ordinance; 4. Any additional information the governing body determines may be useful.

The bills also provide that the local jurisdiction is not required to hire an accountant or other financial consultant to prepare the business impact statement.

The bills state that this requirement does not apply to local ordinances enacted to implement the following: • part II of chapter 163; • section 553.73; • section 633.202; • sections 190.005 and 190.046; • ordinances required to comply with federal or state law or regulation; • ordinances related to the issuance or refinancing of debt; • ordinances related to the adoption of budgets or budget amendments; • ordinances required to implement a contract or an agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipality; or • emergency ordinances.

The bills also create s.125.675 F.S. and s.166.0411, F.S. to require a municipality or county to suspend enforcement of an ordinance that is the subject of an action challenging the ordinance’s validity on grounds that it is expressly preempted by the state constitution or state law, or is arbitrary or unreasonable.

This requirement applies only if: • the action was filed with the court no later than 90 days after the adoption of the ordinance; • suspension of the ordinance was requested in the initial complaint or petition, citing these sections; and • the county or municipality was served with a copy of the complaint or petition.

When the plaintiff appeals a final judgment finding that an ordinance is valid and enforceable, the county or municipality may enforce the ordinance 30 days after the entry of the order unless the plaintiff files a motion for a stay of the lower tribunal’s order which is granted by the appellate court.

The court is required to give these cases priority over other pending cases and render a preliminary or final decision on the validity of the ordinance as expeditiously as possible.

Additionally, the bill provides that the signature of an attorney or party constitutes a certificate that he or she has read the pleading, motion, or other paper and that, to the best of his or her knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay, or for economic advantage, competitive reasons, or frivolous purposes or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the court, upon its own initiative, shall impose an appropriate sanction, which may include an order to pay to the other party or parties the March 4, 2022 | Legislative Reporter

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amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including reasonable attorney fees.

These new sections do not apply to local ordinances enacted to implement: • part II of chapter 163; • section 553.73; • section 633.202; • sections 190.005 and 190.046; • ordinances required to comply with federal or state law or regulation; • ordinances related to the issuance or refinancing of debt; • ordinances related to the adoption of budgets or budget amendments; • ordinances required to implement a contract or an agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipality; or • emergency ordinances.

The bills provide that the court may award attorney fees and costs and damages as provided in s.57.112, F.S. The bills also revise s.57.112 F.S. to authorize the court to assess and award reasonable attorney fees and costs and damages to a prevailing plaintiff in a civil action filed against a local government to challenge the adoption of a local ordinance on the grounds that the ordinance is arbitrary or unreasonable or expressly preempted. Awards are capped at $50,000 and a prevailing party may not recover any attorney fees or costs directly incurred or associated with litigation to determine an award of reasonable attorney fees or costs. Additionally, this section cannot be construed to authorize double recovery if an affected person prevails on a damage claim brought against a local government pursuant to other applicable law involving the same ordinance, operative acts, or transactions. The bills also state that the amendments to this section effective Oct. 1, 2022, only apply to ordinances adopted on or after that date. Note that s.57.112 F.S. does not apply to local ordinances adopted pursuant to Part II of Chapter 163, s.553.73, or s.

633.202.

Private Property Rights to Prune, Trim, and Remove Trees: CS/SB 518 (Sen. Brodeur) was passed by the Senate on March 1 and is placed on the House Special Order Calendar for March 7. An identical bill, HB 1555 (Rep. McClain) is on the House Calendar on Second Reading.

CS/SB 518 amends s.163.045 F.S. which currently prohibits a local government from requiring a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from a certified arborist or a licensed landscape architect, that the tree presents a danger to persons or property.

The bill adds certain qualifiers and definitions to the existing provision. Specifically, the bill provides that “documentation” is an onsite assessment performed in accordance with the tree risk assessment procedures outlined in Best Management Practices – Tree Risk Assessment, Second Edition (2017) and conducted and signed by an arborist certified by the International Society of Arboriculture (ISA) or a Florida licensed landscape architect. The bill also defines “residential property” as a single-family detached building located on a lot that is actively used for single-family residential purposes and that is either a conforming use or a legally recognized nonconforming use in accordance with the local jurisdiction’s applicable land development regulations.

The bill provides that a local government cannot require a notice, application, approval, permit fee or mitigation, for the tree pruning, trimming or removal, if a property owner possesses documentation from an arborist certified by the ISA or a Florida licensed landscape architect that a tree poses an unacceptable risk to persons or property. The bill states that a tree poses an unacceptable risk if removal is the only means of practically mitigating its risk below moderate, as determined by the tree risk procedures outlined in Best Management Practices – Tree Risk Assessment, Second Edition (2017).

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Residential Development Projects for Affordable Housing: CS/CS/SB 962E1 (Sen. Bradley), passed by the Senate on Feb. 20, was received by the House, substituted for CS/CS/HB 981 (Rep. Payne), and passed by the House on March 3.

CS/CS/SB 962 ER would amend ss.125.01055(6) and ss.166.04151(6) F.S., dealing with affordable housing. These sections currently allow a county and municipality to, notwithstanding any other law or local ordinance or regulation to the contrary, approve the development of affordable housing on any parcel zoned for residential, industrial, or commercial use. On parcels zoned for commercial or industrial uses, the bill would provide that an approval may include a mixed-use residential development project so long as at least 10 percent of the units are for housing that is affordable and the sponsor of the project agrees not to apply for or receive funding under s.420.5087 F.S. (State Apartment Incentive Loan Program.) The provisions of these subsections are self-executing and do not require the governing body to adopt an ordinance or a regulation before using the approval process in these subsections. The effective date of the bill is upon becoming law.

Broadband Infrastructure: CS/CS/SB 1800 E1 was passed by the Senate on March 3 and is in the House in Messages. The bill creates the Broadband Pole Replacement Program, to be administered by the Office of Broadband within the Department of Economic Opportunity. The program will reimburse eligible broadband Internet service providers for their costs incurred for the removal and replacement of existing utility poles in areas of Florida that are unserved by broadband Internet service.

Reimbursements under the program are limited to 50 percent of the broadband Internet service provider’s eligible pole replacement cost or $5,000, whichever is less, in addition to the provider’s administrative costs related to the preparation and submission of the application for reimbursement.

The bill also requires the broadband office to report annually on its activities and on the administration of the Broadband Pole Replacement Program and the Broadband Opportunity Program. The bill does not appropriate any funding to the program or resources to the department to administer the program.

CS/CS/SB 1802 E1, a linked bill which creates the Broadband Pole Replacement Trust Fund within the Department of Economic Opportunity, was also based by the Senate on March 3 and is in the House in Messages. The trust fund consists of funds appropriated by the legislature; funds transferred by the department; interest earnings; and grants, gifts, and other contributions made directly to the trust fund. Funds appropriated from federal grant funds must be used consistent with federal law and with any federal grant agreement between the Department of Economic Opportunity and the federal agency for use of the funds.

Similar bills, CS/HB 1543 and CS/HB 1545 (Rep. Tomkow) are both out of committee and on the House Calendar on Second Reading.

Floating Solar Facilities: CS/CS/HB 1411 (Rep. Avila), passed by the House on Feb. 24, was substituted for CS/SB 1338 (Rep. Diaz) and passed by the Senate on March 2. The bill was immediately enrolled by the House. The effective date of the bill would be July 1, 2022.

CS/CS/HB 1411 ER defines “floating solar facility” (FSF), as a solar facility as defined in s.163.3205(2), which is located on wastewater treatment ponds, abandoned limerock mine areas, stormwater treatment ponds, reclaimed water ponds, or other manmade water storage reservoirs.

The bill requires FSFs to be a permitted use in appropriate land use categories in each local government’s comprehensive plan. Each local government must amend its development regulations to promote the expanded use of FSFs. The bill authorizes counties and municipalities to specify buffer and landscaping requirements, but such requirements may not exceed those for similar uses involving solar facility construction that are permitted uses in agricultural land use categories and zoning districts. The bill prohibits FSF construction in an Everglades March 4, 2022 | Legislative Reporter

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Agricultural Area reservoir project, if the local governments involved determine that there would be a negative impact on that area or project.

The bill requires the Office of Energy within the Department of Agriculture and Consumer Services to develop and submit recommendations to the legislature by Dec. 31, 2022, to provide a regulatory framework for private and public sector entities that implement FSFs. Local Tax Referenda Requirements: On March 2, the Senate substituted CS/CS/HB 777 (Rep. Robinson) for CS/CS/SB 1194 (Sen. Boyd) and passed it.

CS/CS/HB 777 ER requires referenda authorizing certain optional local taxes to be held at a general election. The affected taxes are as follows: • tourist development tax; • areas of critical state concern tourist impact tax; • children’s services independent special district tax; • county temporary excess ad valorem millage; • municipal temporary excess ad valorem millage; • county transportation motor fuel tax; • local option fuel tax; and • school district millage.

The effective date of the bill is Oct. 1, 2022.

Real Property Rights: On March 3, CS/CS/SB 1380 E1 (Sen. Rodriguez), passed by the Senate on Feb. 23, was substituted for CS/HB 219 (Rep. Tuck) and passed by the House with an amendment on March 4.

The bill clarifies the Marketable Record Title Act (MRTA) dealing with the title examination and clearance process.

Specifically, the bill: • clarifies that a property conveyance subject to existing encumbrances identified in a muniments of title does not automatically restart MRTA’s 30-year marketability period on such encumbrances. modifies the definition of “covenant or restriction” to include agreements or limitations imposed by a governmental entity or required by such an entity as a condition of a development permit; • adds covenants, restrictions, zoning requirements, and building or development permits to the list of encumbrances extinguished by MRTA but excepts from extinguishment; o comprehensive plans or plan amendments; zoning ordinances; land development regulations; building codes; development permits and orders; and other laws, regulations, or regulatory approvals operating independently of matters recorded in the official record; and o any recorded covenant or restriction that states on the face of the first page of the document that it was accepted by a governmental entity as part of, or as a condition of, any such comprehensive plan or plan amendment; zoning ordinance; land development regulation; building code; development permit or order; or other law, regulation, or regulatory approval; • allows a person with an interest in land which may be extinguished by the bill and whose interest has not been extinguished before July 1, 2022, to file a notice with the clerk of the court by July 1, 2023, to preserve such interest.

The bill also prohibits a county or municipality from enacting any ordinance or regulation restricting or prohibiting the owner or operator of a private parking facility from establishing rates and fees and issuing fines.

The House removed from the bill a provision that allows the county commissioners of a charter county to release a conservation designation or conservation easement on county-owned land without a voter referendum if the property is contiguous to a K-12 school and will be used for K-12 education or athletic purposes.

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The bill is in the Senate in returning messages.

Transportation

Transportation: CS/CS/HB 157 E1 (Rep. Andrade) was passed by the House on March 2, sent to the Senate and referred to the Senate Appropriations Committee. The bill was amended on the House Floor on Second Reading on March 1 to incorporate language which amends s.348.0301 F.S. to reestablish the Greater Miami Expressway Authority with revised powers and duties identified.

The bill also: • creates s.163.31803, F.S. which requires local governments to provide mobility fee credits to a residential developer for capital improvements to a transportation system that FDOT deems necessary to ensure the safe and efficient mobility of people, commerce and goods to bring a planned housing community into service; • creates s.344.066 F.S. which establishes the Implementing Solutions from Transportation Research and Evaluating Emerging Technologies Living Lab (I-STREET) with the University of Florida, and provides for its duties relating to transportation research, education, workforce development, and related issues; • clarifies DOT’s authority to engage in progressive design-build contracting as an innovative technique of highway and bridge design and construction; • exempts certain progressive design-build contracts from an existing statutory cap on innovative contracts; • authorizes landowners to obtain permits from DOT to clear vegetation from the right-of-way on limited access facilities under specified conditions; • removes a limitation on design-build contracting to certain types of projects and authorizes design-build contracting for all types of projects; • requires contracts for bridge work over navigable waters to contain provisions requiring a minimum amount of general liability insurance; • provides those stipends paid by DOT to non-selected design-build firms that have submitted responsive proposals for construction contracts contained in DOT’s legislatively approved work program are not subject to existing documentation and notification requirements for settlement payments made by DOT to resolve bid protests; • authorizes an applying contractor who desires to bid exclusively on construction contracts with proposed budget estimates of $2 million or less (increased from $1 million) to submit reviewed annual or reviewed interim financial statements; • authorizes an applicant for a contractor certificate of qualification to submit a request to keep an existing certificate, with the current maximum capacity rating, in place until the expiration date of the existing certificate; • repeals a public records exemption for documents that reveals the identity of a person who has requested or obtained a bid package, plan, or specifications pertaining to any project to be let by DOT; and • changes from 5 years to 10 years the length of time that DOT must adjust toll rates for inflation.

A similar bill, CS/CS/SB 398 (Sen. Hooper) was reported favorably by the Senate Rules Committee, its final committee of reference, on Feb. 28 and is on the Senate Special Order Calendar for March 7. This bill does not include the language regarding the establishment of the Greater Miami Expressway Authority that was amended into the House bill. It also retains language which caps the annual minimum commitment of state revenue deposited into the State Transportation Trust Fund by the Florida Department of Transportation for specified public transportation projects at no more than 25 percent of such funds, excluding state revenues used for matching federal grants, unless otherwise specified in the General Appropriations Act. The bill is on the Senate Special Order Calendar.

Airports: On March 2, the Senate substituted HB 631 (Rep. Grall) for SB 780 (Sen. Hutson) and passed it. HB 631 ER amends s.332.007(6)(c) F.S., dealing with financing of master planning and eligible aviation development projects at publicly owned, publicly operated airports. This bill would limit FDOT funding of the non-federal share of such projects to general aviation airports, or commercial service airports that have fewer than 100,000 passenger boardings per year as determined by the FAA. The effective date of the bill would be July 1, 2022.

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Environment and Natural Resources

Statewide Flooding and Sea Level Rise Resilience: CS/HB 7053 (Rep. Busatta Cabrera) was passed by the House on March 2. It was sent to the Senate and referred to the Senate Appropriations Committee.

The bill establishes the Statewide Office of Resilience within the Executive Office of the Governor. The bill provides that the office must be headed by a Chief Resilience Officer, who is appointed by and serves at the pleasure of the governor.

The bill requires the Florida Department of Transportation (FDOT) to develop a resilience action plan for the State Highway System based on current conditions and forecasted future events. The goals of the resilience action plan are to do all of the following: • recommend strategies to enhance infrastructure and the operational resilience of the State Highway System, which may be incorporated into the transportation asset management plan; • recommend design changes for retrofitting existing and constructing new state highway facilities; • enhance partnerships for collaboration to address multijurisdictional resilience needs.

It also requires FDOT to submit the action plan to the governor and the legislature by June 20, 2023, and a status report every third year on June 30 thereafter.

The bill makes various revisions to s. 380.093, F.S., relating to statewide resiliency funding and planning, including: • authorizing the use of Resilient Florida Grant Program funds to fund preconstruction activities for projects to be submitted for inclusion in the Statewide Flooding and Sea-Level Rise Resilience Plan in municipalities with a population of 10,000 or fewer and counties with a population of 50,000 or fewer, but not for projects that adapt critical assets to flooding and sea-level rise; • defining the term “preconstruction activities” to mean activities associated with a project that occur before construction begins, including, but not limited to, design of the project, permitting for the project, surveys and data collection, site development, solicitation, public hearings, local code or comprehensive plan amendments, establishing local funding sources, and easement acquisition; • requiring all noncoastal communities to perform a rainfall-induced flooding assessment; • pushing back by one year (to 2023 and 2024, respectively) the dates by which the Comprehensive Statewide Flood Vulnerability and Sea-Level Rise Data Set and the assessment must be completed; • requiring DEP to rank and include in the Statewide Flooding and Sea Level Rise Resilience Plan all eligible projects that were submitted for the plan; • authorizes special districts that are responsible for the management and maintenance of inlets and intracoastal waterways or for the operation and maintenance of a potable water facility, a wastewater facility, an airport, or a seaport facility to submit projects for inclusion in the plan; • expanding the list of entities that may submit a list of proposed projects to DEP that mitigate the risks of flooding or sea-level rise on water supplies or water resources to include drainage districts, erosion control districts, and regional water supply authorities; and • revising the $100 million cap on funding proposed for each year of the plan to a minimum threshold of $100 million.

By Dec. 15, 2022, the bill requires DEP, in consultation with the Chief Resilience Officer, to prepare a report regarding flood resilience and mitigation efforts in the state. The report must be submitted to the Governor, the President of the Senate, and the Speaker of the House of Representatives.

The bill requires the Florida Flood Hub for Applied Research and Innovation to provide certain data to counties and municipalities for vulnerability assessments. Beginning Jan. 1, 2023, the bill also directs surveyors and mappers to submit digital copies of the elevation certificates they complete to the Division of Emergency Management (DEM) as outlined on DEM’s website.

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A similar bill, CS/SB 1940 (Sen. Brodeur) was reported favorably by the Senate Appropriations Committee, the last committee of reference, on Feb. 28 and is on the Senate Calendar on Second Reading.

Inventories of Critical Wetlands: CS/CS/SB 882 (Sen. Brodeur), passed by the Senate on Feb. 23, was substituted by the House for HB 761 (Rep. Truenow) on March 4 and passed.

This bill amends s.373.036, F.S., to require water management districts, in cooperation with local governments, to develop a list of critical wetlands to be acquired through the Land Acquisition Trust Fund. The bill provides the following criteria to determine if a wetland is critical: • the ecological value of the wetland, as determined by the physical and biological components of the environmental system; • the effect of the wetland on water quality and flood mitigation; • the ecosystem restoration value of the wetland; and • the inherent susceptibility of the wetland to development due to its geographical location or natural aesthetics.

The bill directs each water management district’s governing board to notify the owner of any property that the district contemplates including on the critical wetlands list before it adopts or amends the list. If at any time a property owner wishes to have their property removed from the list, they must submit by certified mail a letter stating they wish their property to be removed and sufficiently identify such property to the governing board. At its next regularly scheduled meeting, the governing board shall approve removal if the requirements are met. The bill additionally requires water management districts opting to utilize an annual strategic plan to include a list of critical wetlands in such plan.

The effective date of the bill would be July 1, 2022.

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